In the Interest of C.R., Minor Child ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0592
Filed June 6, 2018
IN THE INTEREST OF C.R.,
Minor Child,
J.R., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,
District Associate Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Martha L. Cox, Bettendorf, for appellant father.
Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant
Attorney General, for appellee State.
Brian P. Donnelly of Mayer, Lonergan & Rolfes, P.C., Clinton, guardian ad
litem for minor child.
Considered by Danilson, C.J., and Mullins and McDonald, JJ. Tabor, J.,
takes no part.
2
MULLINS, Judge.
A father appeals the termination of his parental rights to his child. 1 He
challenges the grounds for termination of his parental rights and contends the
juvenile court erred in refusing to consider his motion to modify placement prior to
termination.2
The Iowa Department of Human Services has been providing services to
these parents in relation to a number of their children since 2015. The father has
a history of aggressive behavior and domestic violence. The child in interest was
born in early July 2017. Hospital staff received a report from a third party that the
mother engaged in the use of methamphetamine on the date she was admitted to
the hospital and gave birth to the child. The mother refused drug testing but
admitted she used methamphetamine during her pregnancy. The child tested
1
Regular readers of the opinions of this court will notice striking similarities between the
legal analysis contained in this opinion and that contained in another being filed
simultaneously. Cf. In re E.B., No. 18-0486, 2018 WL _____ (Iowa Ct. App. June 6, 2018).
This is because these cases share the same appellant who forwards the same—largely
verbatim—arguments in the separate cases. Although the factual and procedural histories
of the separate cases vary, albeit minimally, and we limit our analysis of each case to its
record alone, the legal principles employed still apply equally to each case.
2
As he did in a separate appeal concerning termination of his parental rights to another
of his children, the father also contends the juvenile court “erred when it did not consider
the evidence for purposes of a permanency hearing and only a termination of parental
rights hearing, therefore waiving the father’s right to request six more months to reunify
with his child.” As we do in the other appeal, we find no merit in the father’s argument that
the juvenile court’s decision to conduct the termination hearing prior to a permanency
hearing effectually foreclosed his right to request a six-month extension, as such a request
may be made in a termination hearing and in fact was made by the father at the termination
hearing in this case. See Iowa Code § 232.117(5) (2017) (providing if, following a
termination hearing, the court does not terminate parental rights but finds there is clear
and convincing evidence that the child is a child in need of assistance, the court may enter
an order in accordance with section 232.104(2)(b)); see also id. § 232.104(2)(b) (affording
the juvenile court the option to continue placement of a child for an additional six months
if the court finds “the need for removal . . . will no longer exist at the end of the additional
six-month period”).
3
positive for methamphetamine. At the time of the child’s birth, the father 3 was
incarcerated. The father remained incarcerated throughout these proceedings, but
the evidence reflects he was to be released on parole in April 2018. The father
testified at the termination hearing he has been incarcerated for an approximate
total of seven years since 2008. The father has a total of eight children and has
never been involved in any of their lives.
The child was removed from the mother’s care on July 10, 2017, and was
placed in foster care. Shortly thereafter, the father filed a letter with the court
stating, “I will not be attending this court” and “do not send me another piece of
paper about this child.” The father testified that, at the time he sent the letter, he
knew he was potentially the child’s father. A few days later, service providers
visited the father in jail, upon which the father advised, “I don’t want anything to do
with this child.” In August, the juvenile court adjudicated the child a child in need
of assistance and ordered the foster-care placement to be continued. Following a
dispositional hearing in October, the court again continued the foster-care
placement. The child has been in the same foster-to-adopt home his entire life
and is bonded with his foster parents. The child has special needs, and those
needs have been consistently met in the foster home.
The State petitioned for the termination of both parent’s parental rights on
December 7. The father took no part in the proceedings until December 11, when
he filed a motion to “modify disposition and/or placement.” In his motion, the father
stated his mother and her husband are licensed foster parents and requested that
3
At the time of the child’s birth, the mother asserted the appellant was the father of the
child. In August, paternity testing confirmed him to be the child’s biological father.
4
the child be placed with them. The court ordered that the motion be considered at
the same time as the upcoming permanency and dispositional-review hearing. In
a subsequent order, the court noted the “[f]ather’s mother needs to be vetted as a
family placement,” and ordered that all matters, including the issue of termination,
be considered at the next hearing, which was ultimately held in March 2018.
Following the hearing, the court terminated the father’s parental rights
pursuant to Iowa Code section 232.116(1)(b), (e), (g), and (h). The father filed a
motion to reconsider, enlarge, or amend requesting the court to allow him an
additional six months to work toward reunification and to grant his motion to modify
placement. The juvenile court denied the motion, and the father appealed.4
Appellate review of termination-of-parental-rights proceedings is de novo.
In re A.S., 906 N.W.2d 467, 472 (Iowa 2018) (quoting In re A.M., 843 N.W.2d 100,
110 (Iowa 2014)). Our primary consideration is the best interests of the child. In
re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
First, the father challenges the grounds for termination of his parental rights
under section 232.116(1)(b), (e), (g), and (h). “On appeal, we may affirm the
juvenile court’s termination order on any ground that we find supported by clear
and convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).
As to paragraph (h), the father does not challenge the sufficiency of the
evidence, argue termination is not in the best interests of the child, or contend a
statutory exception should be applied to preclude termination. See Iowa Code
§ 232.116(1)–(3). He only argues he was denied due process when the juvenile
4
The mother’s parental rights were also terminated. She does not appeal.
5
court held a combined termination and permanency hearing and the circumstances
render termination under paragraph (h) inappropriate. He states his argument as
follows:
[W]hen any Termination of Parental Rights Hearing is
combined with a Permanency Hearing, it renders the request for six
more months to reunify, as permitted by Iowa Code Section
232.104(2)(b), meaningless because, if the child cannot be returned
to the parent’s custody that day, a ground for termination of parental
rights exists. Here, review/permanency hearings were continued
without having a substantive hearing to request services and more
time to reunify. In order to afford parents the right to request more
time to reunify, as permitted by Iowa Code Section 232.104(b),
Permanency hearings cannot be combined with Termination of
Parental Rights Hearings. Combining such hearings violates a
parent’s right to due process of law.
Therefore, the district court erred when it terminated the
father’s parental rights pursuant to Iowa Code Section
232.116[(1)](h) because he was not afforded due process of law.
However, this due process argument was neither raised in, nor decided by, the
juvenile court. The argument is therefore not preserved for our review. See Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decided them on appeal.”); State v. Mulvany, 600
N.W.2d 291, 293 (Iowa 1999) (“[W]e require error preservation even on
constitutional issues.”). Furthermore, the father has failed to provide us with any
legal authority to support his position. Therefore, we alternatively deem the
argument waived. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in
support of an issue may be deemed waiver of that issue.”); see also In re C.B.,
611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all encompassing argument is
insufficient to identify error in cases of de novo review.”); Ingraham v. Dairyland
Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974) (“To reach the merits of this case
6
would require us to assume a partisan role and undertake the appellant’s research
and advocacy. This role is one we refuse to assume.”).
Because the father’s challenge to termination under paragraph (h) is both
waived and not preserved and the father does not challenge the sufficiency of the
evidence, argue termination is not in the best interests of the child, or contend a
statutory exception should be applied to preclude termination, we affirm the
termination of his parental rights pursuant to section 232.116(1)(h), the grounds
for which we find supported by clear and convincing evidence. See In re P.L., 778
N.W.2d 33, 40 (Iowa 2010) (indicating that if a party does not challenge a particular
step in the three-step termination framework, appellate courts need not address
the issue).
Next, the father contends the juvenile court erred in refusing to consider his
motion to modify placement prior to termination. He argues placing the child with
his mother, a relative, is less restrictive than continuing the placement of the child
in his foster-to-adopt home, where he has resided all of his life. We acknowledge
that “chapter 232 favors relative placements over nonrelative placements.” In re
N.M., 528 N.W.2d 94, 97 (Iowa 1995). In this case, as opposed to the father’s
separate appellate challenge to the termination of his rights to another child, the
father never opposed the juvenile court’s practice of considering the issue of
termination before modification or permanency. Again, error is not preserved on
this claim. See Meier, 641 N.W.2d at 537 (Iowa 2002); Mulvany, 600 N.W.2d at
293. In any event, we find the juvenile court’s decision to reserve ruling on the
modification motion pending termination was not inappropriate. See In re D.S.,
806 N.W.2d 458, 472 (Iowa Ct. App. 2011) (concluding juvenile court acted
7
appropriately in declining to address placement issue until after termination
hearing where issue of placement was not raised until well after removal and after
termination proceedings had been initiated). Furthermore, “[w]hen a court
terminates parental rights, there is no statutory preference for placement with a
relative.” A.S., 906 N.W.2d at 477.
We affirm the juvenile court.
AFFIRMED.